2000 (3) TMI 89 - AT - Central Excise

Summary

Issues:
1. Cancellation of noting of bills of entry by Assistant Collector.
2. Refund claim for excess duty paid due to change in exchange rate.
3. Compliance with Bill of Entry (Form) Regulations, 1976.
4. Requirement of bill of lading to accompany bill of entry.
5. Proper officer under Section 46 of the Act.
6. Rectification of clerical error under Section 154 of the Act.
7. Department's appeal against Collector (Appeals) order.
8. Assessment based on subsequently filed bills of entry.
9. Justification for cancellation of bills of entry.
10. Noting clerk as a proper officer under Section 46(1) of the Act.

Analysis:
1. The Collector (Appeals) found no provision in law for the cancellation of noting of bills of entry without giving the importer an opportunity to rectify the defect in the bill of lading. He allowed the refund subject to provisions on unjust enrichment.

2. The department challenged this decision, arguing that the bills of entry were not filed as per Bill of Entry (Form) Regulations, 1976, and the bill of lading is an essential accompanying document. They contended that the error in noting the bill of lading was a clerical error and could be rectified under Section 154 of the Act.

3. The Tribunal disagreed with the department, stating that there is no legal requirement for a bill of lading to inevitably accompany the bill of entry. They noted that the purpose of compliance could have been achieved from the copy of the bill of lading submitted, even if it was unsigned.

4. The Tribunal also dismissed the argument that subsequent cancellation of the bill of entry was necessary, emphasizing that the department cannot benefit from its own error in cancellation. They found no merit in the contention that the noting clerk was not a proper officer under Section 46(1) of the Act.

5. Ultimately, the Tribunal upheld the decision of the Collector (Appeals) and dismissed the appeal, stating that there was no justification for interfering in the matter. They concluded that the bills of entry were correctly noted, and the exchange rate was applied appropriately for the subsequently filed bills of entry.